IN RE: OBJECTIONS TO THE NOMINATION PETITION OF JAMES R. CAVANAUGH FOR THE 1982 PRIMARY ELECTION FOR THE DEMOCRATIC NOMINATION FOR THE OFFICE OF JUSTICE OF THE SUPREME COURT OF PENNSYLVANIA

Original jurisdiction in case of In Re: Objections to the Nomination Petition of James R. Cavanaugh for the 1982 Primary Election for the Democratic Nomination for the Office of Justice of the Supreme Court of Pennsylvania.

Objections have been filed*fn1 to the nomination petitions of James R. Cavanaugh (candidate) for the Democratic nomination for the office of justice of the Pennsylvania Supreme Court. It is alleged that the candidate failed to obtain 100 valid signatures from each of 5 counties as required by Section 912(b) of the Election Code, Act of June 3, 1937, P.L. 1333, as amended, 25 P.S. § 2872(b).*fn2

A hearing was conducted in this matter on March 23, 1982, at which time the candidate's counsel conceded that more than 100 valid signatures were obtained from only four counties.*fn3 It was argued, however,

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that the geographic distribution requirement set forth in the Election Code was unconstitutional as being a violation of the equal protection clause of the Fourteenth Amendment of the United States Constitution and that, inasmuch as the nomination petition admittedly contained over 500 valid signatures, it should be upheld.

The candidate points to the holding of the U.S. Supreme Court in Moore v. Ogilvie, 394 U.S. 814 (1969), to support his contention. It was held there that an Illinois statute requiring independent candidates for nomination for President and Vice-President to obtain 200 signatures from each of 50 different counties was unconstitutional. The necessity for such geographic distribution was held in violation of the "one person one vote" principle enunciated in Baker v. Carr, 369 U.S. 186 (1962) in that it gave voters in less populous counties a greater ability to nominate candidates than voters in more densely populated counties and thereby impermissibly diluted the voting strength of the latter group.*fn4 The candidate also relies heavily on an unreported decision of the Federal District Court for the Eastern District of Pennsylvania, Elliott v. Shapp, Civil Action No. 76-1277 (1979), which held Section 912(a) of the Pennsylvania Election Code, 25 P.S. § 2872(a) to be unconstitutional because it requires candidates for President and United States Senator to obtain signatures of 100 registered voters from each of 10 counties.*fn5 It is argued that these decisions and the rationale employed therein are equally applicable here.

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The objector contends first that the doctrine of "one person one vote" proclaimed by Baker v. Carr is not applicable to judicial elections. See e.g., Wells v. Edwards, 347 F. Supp. 453 (M.D. La. 1972) aff'd 409 U.S. 1095 (1973); Holshouser v. Scott, 335 F. Supp. 928 (M.D.N.C. 1971), aff'd 409 U.S. 807 (1972). We do not believe, however, that these cases or the others cited by the objector are persuasive here.

In Wells, it was held that the "one person one vote" principle did not apply to a Louisiana statute which provided that each judicial district in the state would elect a supreme court justice, even though the relative populations of those districts were not comparable. The court in Wells decided, as have other courts, that judges need not be elected from districts which are of equal population, because judges are not representatives of the people and the voters do not have a right to equal allocation of judicial services. See also, Gilday v. Board of Elections of Hamilton County, 472 F.2d 214 (6th Cir. 1972); Concerned Citizens of Southern Ohio, Inc. v. Pine Creek Conservancy District, 473 F. Supp. 334 (S.D. Ohio 1977); Buchanan v. Gilligan, 349 F. Supp. 569 (N.D. Ohio 1972). The present case, however, does not involve an allegation of unequal representation of the electorate in judicial offices. It is premised upon the argument that 25 P.S. § 2872(b) serves to dilute the voting power of the electorate who reside in more populous counties in choosing an official who is to be elected by voters in an at-large state primary. The real concern here is whether or not each voter in the state has the same influence in nominating a supreme court justice as each other voter.

In Holshouser, the court upheld a North Carolina law providing that judges were to be nominated by primaries in individual judicial districts, but that they

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were to be elected in a state-wide general election. It was argued there that the votes of the electorate in the individual primaries were diluted by the election of the judges for each district in a state-wide election. It was held, however, that each voter there was given equal voting power in his district in the primary election, that each voter had an equal influence in the general election and that, in the absence of a showing that the votes of one portion of the electorate were given greater weight than those of another, the "one person one vote" doctrine did not apply. The candidate here asserts that the geographic distribution requirement of 25 P.S. § 2872(b) imposes such an inequality in voters' influence. We also believe that it does and, therefore, that the "one person one vote" principle is applicable here.*fn6

As to the merits of the constitutional challenge, the objector and the Commonwealth*fn7 contend that the court's decision in Elliott v. Shapp was incorrect and

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that it should be disregarded here. It is argued that the state's interest in maintaining a manageable number of candidates on the ballot and in ensuring that a candidate for state-wide office has at least a modicum of support throughout the Commonwealth outweighs the de minimis burden placed upon the voters here and that we should therefore determine only whether or not the geographic distribution requirement here concerned has a rational relationship to those ends so that the "strict scrutiny" doctrine would not apply. It is argued alternatively that, if we determine that the statute should be strictly scrutinized, this Court should hold that the Commonwealth has a compelling state interest here which is fulfilled by 25 P.S. § 2872(b).

In Elliott v. Shapp, the court held that 25 P.S. § 2872(a) had an adverse effect on a fundamental right -- i.e., the voting franchise -- and determined that the rational relationship test was inappropriate. And, in reliance on Moore v. Ogilvie, the court refused to examine the degree of the impact imposed on the franchise and held that, where there was any showing of a dilution of voting rights, strict scrutiny of the relevant statute would be applied. We likewise believe that the strict scrutiny test, not the rational relationship test, should be applied here, because the statute here imposes a facial dilution of voting power. McCarthy v. Garrahy, 460 F. Supp. 1042 (D. R.I. 1978).

Even were we to examine the degree of impact on the voting franchise, to determine if it was de minimis, as the objector requests, we would be forced to conclude that 25 P.S. § 2872(b) imposes a substantial dilution of the voting influence of the electorate in more populous counties. A review of the Pennsylvania Bureau of Elections' compilation of the number of registered voters for the November 1981 election,

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which was submitted as evidence at the hearing in this matter, reveals a significant amount of such dilution. The four counties with the highest number of registered voters (Allegheny, Delaware, Montgomery and Philadelphia) have approximately 41.8% of the 5,689,184 registered voters in the state. Even if all of these voters were to sign a petition to nominate a particular candidate, that candidate's name would not be placed on the ballot under the requirement of the law here in question without at least 100 more signatures from a fifth county. Conversely, the voters in the five counties with the fewest number of registered voters (Cameron, Forest, Fulton, Montour and Sullivan) could effect such a nomination even though they represent only 39% of the total electorate. Voters in the least densely populated counties would consequently have an influence over ballot access which is more than 100 times greater than that enjoyed by voters in the most heavily inhabited counties. We can certainly not characterize such dilution as de minimis.*fn8

Having determined that strict scrutiny of 25 P.S. § 2872(b) is called for, we must still determine, of course, whether or not that section serves a compelling state interest which cannot be attained in any other manner. Elliott v. Shapp. Admittedly, there can be little dispute that the Commonwealth has some

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interest in the regulation of access by candidates to the ballot and in ensuring that a candidate for a state-wide office has at least a minimal degree of support in areas of the state other than his own. We do not believe, however, that such an interest is "compelling" or would give the state license to infringe upon the voting franchise. McCarthy v. Garrahy; Socialist Labor Party v. Rhodes, 318 F. Supp. 1262 (S.D. Ohio 1970) aff'd mem. sub nom. Sweetenbaum v. Gilligan, 409 U.S. 942 (1972). Moreover, even were we to find that such an interest is "compelling", we would have to strike down the county-based distribution requirement utilized here, for, as has been pointed out, such a system does not take into account the wide differences in population among the various counties. An equally effective method by which the Commonwealth could achieve its legitimate aims would be to require signatures from different congressional districts. Inasmuch as all such districts have almost the same population, the problem of dilution of voter influence and the violation of the "one person one vote" principle would not arise.*fn9 Udall v. Bowen, 419 F. Supp. 746 (S.D. Ind. 1976) aff'd, 425 U.S. 947 (1976).

We must hold, therefore, that the Commonwealth's interest as implemented by 25 P.S. § 2872(b) is not compelling, that an alternative and constitutionally valid method to achieve legitimate state aims is available and that, consequently, the section of the Election Code here concerned cannot withstand evaluation under the strict scrutiny test.

Finally the Commonwealth argues that, under reapportionment cases, a greater disparity in population is allowed among state legislative districts than

[ 65 Pa. Commw. Page 629]

is permitted among congressional districts*fn10 and that this Court should therefore condone more dilution of voting influence here where nominations of state officials are concerned as compared to Moore or Elliott which struck down voter dilution involving candidates for federal offices. No case law has been cited, however, which supports such a distinction between elections for state and federal offices in the present context, and our review of the cases indicates that courts have applied the theory of "one person one vote" equally to elections in both categories. See e.g., Communist Party of Illinois v. State Board of Elections, 518 F.2d 517 (7th Cir. 1975) cert. denied, 423 U.S. 986 (1975); Socialist Labor Party v. Rhodes. We cannot, therefore, accept this diffentiation.*fn11

For all of the reasons discussed above, we must hold that the geographic distribution requirement for signatures on nomination petitions contained in 25 P.S. § 2872(b) is a violation of the "one person one vote" principle and is consequently invalid under the equal protection clause.

Having so concluded, however, our resolution of this matter still requires that we now determine how many signatures the candidate here must produce in order to have his name placed on the Democratic primary ballot. In Elliott v. Shapp, the court found that a minimum of 1000 signatures was sufficient for candidates for nomination for President or for United

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States Senator where the statute had called for at least 100 signatures from each of 10 counties. In implementing that decision, the Commonwealth's Department of State through its Bureau of Elections now requires such candidates to submit only that 1000 signature minimum.*fn12 For the sake of consistency among all candidates who are to be elected state-wide, therefore, whether for a state or a federal office, we will adopt the minimal requirement of 500 signatures provided for in 25 P.S. § 2872(b).*fn13 And, inasmuch as the candidate's nomination petition here contains well over 500 unchallenged signatures,*fn14 we must hold that the objections here presented must be dismissed and we will issue an order directing the Secretary of the Commonwealth to certify the name of the candidate to be placed on the Democratic primary ballot for justice of the Pennsylvania Supreme Court in the primary election to be held on May 18, 1982.

Order

And Now, this 6th day of April, 1982, upon consideration of the objections filed to the nomination petition of James R. Cavanaugh for the Democratic nomination for the office of justice of the Pennsylvania Supreme Court, it is ordered that said objections

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are hereby dismissed. The Secretary of the Commonwealth of Pennsylvania is directed to certify the name of James R. Cavanaugh to the proper officials for inclusion on the ballot of the Democratic Party primary election of May 18, 1982.

The prothonotary is directed to notify forthwith the parties hereto of this order and to certify a copy thereof to the Secretary of the Commonwealth.

[EDIT ]

Order

And Now, this 12th day of April, 1982, it is ordered that this Court's memorandum opinion in the above-captioned matter filed on April 6, 1982 be clarified by the amendment of the first full sentence on page 8 which shall now read: "For the sake of consistency among all candidates who are to be elected state-wide, therefore, whether for a state or federal office, we will use the rationale adopted in Elliott v. Shapp regarding candidates subject to the provisions of 25 P.S. § 2872(a)*fn13 and we will order that candidates subject to the provisions of 25 P.S. § 2872(b) obtain a minimum of 500 signatures."

Order

And Now, April 20, 1982, the order of this Court entered April 6, 1982, dismissing the objections to the nomination petition of James R. Cavanaugh for the Democratic nomination for the office of Justice of the Pennsylvania Supreme Court is vacated. The Secretary of the Commonwealth is directed not to certify the name of James R. Cavanaugh to the proper officials for inclusion on the ballot of the Democratic Party primary election of May 18, 1982.

Opinion to follow.

The Prothonotary is directed to notify forthwith the parties hereto of this order and to certify a copy thereof to the Secretary of the Commonwealth.

Judge Blatt dissents to this order.

Disposition

Previous order vacated. Petition granted. Secretary of Commonwealth directed not to certify name of candidate.

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